When a couple separates who have children and/or property jointly, arrangements need to be made for how these are managed following the dissolution of the partnership. For some couples, the division of property and child access and residency arrangements can be agreed quickly and amicably. However, for a sizeable number of couples, reaching a solution on how best to divide joint assets, or deciding what level of child access is reasonable, can be a challenge. In some cases, the break-up may be a bitter one, with both parties full of acrimony and anger. In other cases, each party may have their own idea of how arrangements should look and may not be prepared to compromise.
In these circumstances, mediation may be a suitable option before considering legal action.
What is mediation?
Mediation involves the use of a trained, neutral professional who works with both parties to try and reach a mutually satisfactory solution to the issues of property division and child residency, access and maintenance. It is usually recommended as a way of resolving civil matters, as an alternative to protracted court action. Although not legally binding (unless parties enter into a formally signed Term of Settlement agreement), the agreement obtained through mediation can subsequently be recognised by a court as part of divorce or family court proceedings.
What are the advantages of mediation?
The process of mediation has several benefits over court proceedings to decide on civil matters. These include:
Mediation doesn’t need to be completed by a legal professional, which lowers the cost. It also requires less time than court proceedings, saving on hourly costs.
Courts are busy locations, where it can take months for hearings to be scheduled. Given that the judge may require several hearings before a final decision is reached, it can take years before a final solution is determined by the court. In contrast, mediation can resolve matters in just a few short weeks.
When a civil matter goes to court, it is the judge that decides on the way forward. If either party is unhappy with the decision, they will have to launch an appeal (which costs money and takes time). In addition, an appeal may not be successful. During mediation, there is time for negotiation, allowing both parties to compromise in order to find a workable solution specially making some adjustments on parenting during COVID 19.
The way that court is set up tends to create a highly emotional environment, that mitigates against a mutually satisfactory solution. Whilst one party may “win”, the amount of money, time and stress the process can cause means it’s not usually the best option for civil matters.
The Mediation Process
Mediation consists of five stages:
- Preliminary meeting (the mediator holds a preliminary meeting with both parties).
- Statement of the problem. This stage generally consists of both sides meeting with the mediator to “put their side”.
- Evidence gathering. If necessary, each party needs to (briefly) put together evidence in support of their case.
- Problem identification. The mediator looks at the information given, along with the statements from both parties and attempts to tease out which issues can be readily agreed on and which require negotiation.
- Negotiation. The aim of this process is to try and find a mutually agreeable way forward. A variety of different techniques and approaches can be used, depending on the situation. Commonly, a mediator may put together a solution, then ask each party to tweak it until a suitable compromise is found.
If facilitated correctly, mediation can be a powerful tool for conflict resolution, helping both parties reach an agreement, even if tensions are running high. If the family is still unable to reach an agreement, you may call Linda Emery & Associates for legal advice and have a talk with our family lawyers on the Central Coast.